Matkins v. State , 33 Tex. Crim. 605 ( 1894 )

DAVIDSON, Judge.

1. A motion for new trial based upon the disqualification of one of the grand jurors was properly overruled. This does not constitute cause for a new trial. The qualifications of a grand juror can be reached only by challenge, and in no other way. Willson’s Crim. Proc., secs. 1901, 1902, 1906.

2. Impeaching testimony is not such newly discovered evidence as authorizes the granting of a new trial. The court did not err in refusing the new trial on this ground. Willson’s Crim. Proc., sec. 2644.

3. Two of the defendant’s witnesses had been indicted for the same murder of which appellant was on trial in this case, their prosecutions having been dismissed. These facts were proved. No objections were urged to its introduction, nor was any motion made to withdraw it from the consideration of the jury. Neither point would have been well taken. The testimony was clearly admissible.

4. It is urged the court should have properly charged the jury in regard to such testimony. What charge should have been given is left largely to inference. The question should have been clearly stated, so that this court could have fully understood the point intended to be raised. The State did not elicit from the witnesses facts inculpatory of appellant, hence a charge on accomplice testimony was not required. The fact that they had been indicted for the same murder as appellant was introduced evidently for the purpose of affecting their credibility. Recent decisions of this court have held, that when the defendant takes the stand as a witness in his own behalf, and the State proves other indictments or prior convictions against him, the court must instruct the jury as to the object and purpose of such evidence, and a failure to do so will be reversible error. The reason for this ruling is given in those opinions, and it is unnecessary here to repeat it. There was no possibility of convicting the witnesses alluded to in this case for any offense, hence the rule laid down as to defendants in the cited cases does not apply. Nor was it possible to convict appellant of any offense, under this indictment, other than some grade of the homicide charged in said indictment, and their testimony had reference only to this case.

5. The charge of the court is correct, and fairly presents the law of the case. The facts do not suggest the issue of manslaughter, hence it should not have been charged upon by the court.

Under the State’s evidence appellant was, at the least, guilty of murder in the second degree, and the jury so found. If his witnesses testified truthfully, the issue of self-defense was perhaps suggested. However, the issues were properly charged, and the conflicts in the testimony settled by the verdict.

We see no reason for disturbing the verdict, and the judgment is affirmed.

Affirmed.

Judges all present and concurring.